Will Death Of Laude Incite People Power To Amend VFA?

by Joseph G. Lariosa

CHICAGO (JGL) – If Filipinos would like to force the hands of Presidents Barack Obama and Noynoy Aquino to change the terms of the Visiting Forces Agreement (VFA) as a result of the alleged murder of a Filipino Jeffrey “Jennifer” Laude in the hands of a United States Marine Private First Class Joseph Scott Pemberton, they have to make use of their weapon available to them at their disposal – continuous rallies, including raising funds to buy a full-page ad in the New York Times.

I believe since this strategy worked before, and it should work again.

When three U. S. servicemen (PFC Rodrico Harp and PFC Kendrick M. Ledet, both of the Marines and Seaman Marcus D. Gill of the Navy) were accused of raping a 12-year-old schoolgirl in Okinawa, Japan on September 4, 1995, the U.S. refused to hand over the three servicemen to Japanese authorities.

This prompted the Okinawans to stage continuous protests, including a purchase of a full-page ad in the New York Times, decrying the rape and other aspects of the U.S. bases in Okinawa. The full-page color ad on the Marijuana Debate that appeared in Aug. 3, 2014 Sunday New York Times issue cost $180,000.

Knowing that the American people would give “sympathetic consideration” to the Japanese rape victim, then, U.S. President Bill Clinton held an emergency meeting with Japanese Prime Minister Ryutaro Hashimoto, forcing the U.S. to hand over the U.S. Marines “even before their indictments.”

A resolution by the Japanese parliament to change the terms of the Status of Forces Agreement (SOFA), however, did not cut it when a similar outcry to revise the question of extraterritoriality, exemption from jurisdiction of local law only as it relates to the place the suspects were detained, was raised again after another crime was committed by a U.S. Marine officer (Maj. Michael Brown) seven years later in Okinawa.

But in a similar case in 1968, two years after the SOFA was signed between the U.S. and South Korea, U.S. Army Specialist Fourth Class H. K. Smallwood, asserted in the case of Smallwood v. Clifford, that U.S. authorities did not have legitimate authority, under the jurisdictional provisions contained in the agreement, to release him to the Republic of Korea for trial by a Korean court on charges of murder and arson.

On March 11, 1968, based on the provisions of the SOFA, the Korean Minister of Justice notified the Commander of the U. S. Forces in Korea that the Korean Government intended to exercise its primary right of jurisdiction over Specialist Smallwood on charges of murder and arson. On March 21, 1968, Smallwood was also formally charged by the U. S. military authorities with violating Article 118(2) (unpremeditated murder) and Article 92 (failure to obey lawful general regulation) of the Uniform Code of Military Justice (UCMJ).


On April 25, 1968, Smallwood was indicted by South Korea’s Seoul District Prosecutor. While awaiting trial by the Korean authorities, petitioner has been incarcerated at the United States Army Stockade at ASCOM City, Korea. Proceedings in the Korean courts began on June 4, 1968.

According to US-South Korea’s SOFA, petitioner Smallwood will remain in the custody of the American military authorities pending final disposition of the criminal charges in the Korean court.

Smallwood protested that the agreement was not approved in a “constitutionally acceptable manner.”

Quoting a precedent in Wilson v. Girard (354 U.S., 77 S. Ct. 1409, 1957) that reached the U.S. Supreme Court, the U.S. District Court for the District of Columbia (286 F. Supp. 97 (1968) ruled “(w)hen a violation of the foreign jurisdiction’s criminal laws occurs, the primary jurisdiction lies with that nation and the provisions of the UCMJ only apply if the foreign nation expressly or impliedly waived its jurisdiction. In support of its decision the court cited the principle, stated in Wilson, that the primary right of jurisdiction belongs to the nation in whose territory the service member commits the crime.

The Wilson case arose in 1957, when William S. Girard, a Specialist Third Class in the U. S. Army, was engaged on January 30, 1957, with members of his cavalry regiment in a small unit exercise at Camp Weir range area, Japan. Japanese civilians were present in the area, retrieving expended cartridge cases. Girard and another Specialist Third Class were ordered to guard a machine gun and some items of clothing that had been left nearby. Girard had a grenade launcher on his rifle. He placed an expended 30-caliber cartridge case in the grenade launcher and projected it by firing a blank. The expended cartridge case penetrated the back of a Japanese woman gathering expended cartridge cases and caused her death.

The U. S. claimed that the act was committed in the performance of official duty, but Japan insisted that it was outside the scope of official duty and therefore Japan had primary jurisdiction to try the member. After negotiations, the United States acquiesced and agreed to turn the member over to Japanese authorities. In an attempt to avoid trial in the Japanese Courts, Girard sought a writ of habeas corpus in the United States District Court for the District of Columbia. The writ was denied, but Girard was granted an injunction against delivery to Japanese authorities to stand trial. The United States appealed the injunction to the U.S. Supreme Court.


In Wilson v. Girard, the Supreme Court first addressed the jurisdictional provisions contained in the administrative agreement. The Court determined that by recommending ratification of the security treaty and subsequently the North Atlantic Treaty Organization (NATO) SOFA, the Senate had approved the administrative agreement and protocol (embodying the NATO provisions) governing jurisdiction to try criminal offenses.

The Court held that “a sovereign nation has exclusive jurisdiction to punish offenses against its laws committed within its border, unless it expressly or impliedly consents to surrender its jurisdiction” and that Japan’s “cession to the United States of jurisdiction to try American military personnel for conduct constituting an offense against the laws of both countries was conditioned” by provisions contained in the protocol calling for “sympathetic consideration to a request from the other State for a waiver of its right in cases where that other State considers such waiver to be of particular importance.”

The Court concluded that the issue was then whether the Constitution or legislation subsequent to treaty prohibited carrying out of the jurisdictional provisions. The Court found none and stated that “in the absence of such encroachments, the wisdom of the arrangement is exclusively for the determination of the Executive and Legislative Branches.”

The SOFA in Japan, South Korean and the Philippines, like the Visiting Forces Agreement (VFA), are among the 115 bilateral and multilateral agreements reached by the U.S. in different countries that carry the “extraterritoriality” or “extrality” (meaning the right of a foreigner charged with a crime to be turned over for trial to his own diplomatic representatives in accordance with his national law) granted its military members under the SOFA to afford them the same rights that exist under the U.S. criminal justice system.

SOFA establishes the framework under which U.S. military personnel operate in a foreign country.

Only, the SOFA of  NATO is different. It is an agreement considered a treaty by the U.S. with 26 other countries, including the U.S., as it is reviewed by the U.S. Senate. All other SOFA’s are approved by executive agreements, like the ten-year VFA signed in the Philippines during the Obama visit last April.

Among the provisions of NATO’s SOFA: (1) the criminal jurisdiction provisions contained in Article VII of the agreement do not constitute a precedent for future agreements; (2) when a service member is to be tried by authorities in a receiving state, the commanding officer of the U.S. armed forces in that state shall review the laws of the receiving state with reference to the procedural safeguards of the U.S. Constitution; (3) if the commanding officer believes there is danger that the service member will not be protected because of the absence or denial of constitutional rights the accused would receive in the United States, the commanding officer shall request that the receiving state waive its jurisdiction; and, (4) a representative of the United States shall be appointed to attend the trial of any service member being tried by the receiving state and act to protect the constitutional rights of the service member.” (lariosa_jos@sbcglobal.net)

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